Enforcement of Court Orders
Unfortunately, and all too often one of the parties does not comply with Court orders. This may regard the following types of orders:
- Child Support and Child Support Expenses
- Spousal Maintenance
- Property Division
- Debt Division
- Judgment for Attorney Fees
- Judgment for Equalization Payments
- Parenting Time, Legal Decision Making (Legal Custody)
Failure to Pay Child Support and Child Support Expenses
If a party does not pay their Court ordered child support or child support related expense payments (i.e. such as health insurance, health care costs etc.), the Court may hold such party in contempt. The Court has the discretion to incarcerate (i.e. order jail time) and order sanctions against a party held in contempt. Failure to pay child support is generally considered civil rather than criminal contempt. Thus, the Court can order that a party be incarcerated until the party pays all or a portion of the child support arrearages (i.e. amounts owed) depending upon what the Court considers what the party is able to pay.
Sometimes people avoid getting a job so they do not have to pay child support. This is generally a big mistake as child support arrears will follow the person to their death (i.e. there is no statute of limitations). The Court may find that the party is able to work and may continue to incarcerate the person until the person shows good faith efforts to find and maintain employment.
Sometimes people do not pay their child support because they claim they have no money to pay their other bills. Again, this is a mistake as Arizona Statutes make it very clear that child support is to be prioritized above all other financial obligations.
If a party is unable to pay child support, they should seek a modification as opposed to reducing their payments or failing to pay. Otherwise, they may learn their lesson the hard way in handcuffs.
Failure to Pay Spousal Maintenance
Like child support, a party’s failure to pay spousal maintenance is also enforceable by contempt, and the party may face jail time and sanctions until they do make such payments. A party is advised to make their spousal maintenance payments before other financial obligations. You will not be thrown in jail for failing to pay your credit card statements, but you can be if you do not make your spousal maintenance payments. Again, if you can no longer afford your spousal maintenance payments you are advised to seek a modification or termination of the spousal maintenance award as opposed to merely stopping or reducing your payments.
Failure to Comply with Property Division Orders
Sometimes in a divorce decree or other judgment a party is ordered to turn over certain property. This may be property items or a portion of a financial account. This may include cooperating in having an order entered to divide retirement accounts. The division of property is enforceable by contempt, i.e. a party can be incarcerated and sanctioned for not complying.
Failure to Pay Judgment for Attorney Fees
It is not uncommon for a judge to award one of the parties a portion of their attorney fees and costs following litigation. An award of attorney fees is generally enforceable by contempt (i.e. incarceration, sanctions, etc.).
Failure to Comply with Debt Division Orders
It is not uncommon for a party to fail pay the debts he or she is ordered to pay by the Court. This area of the law is a bit trickier. Under the Arizona Constitution, a party cannot be held in contempt and thus cannot by incarcerated for failing to pay debts.
The general remedy is where a party pays the other party’s Court assigned debts, he or she can obtain a judgment against the violating party for the amount he or she had to pay toward such debts.
Failure to Comply with Equalization Payment Orders
In some cases, a party is awarded certain property interests and ordered to pay the other party a specific amount of money. This is considered a “debt” and thus subject to Arizona Constitutional limitations. Like the payment of other types of debts, a party cannot be held in contempt for failing to pay an equalization judgment and thus cannot be held in contempt or incarcerated for failing to pay such amount. Thus, it is important to make sure that such obligations are secured by property interests (such as a deed of trust or otherwise). Otherwise, you may be stuck with merely having a judgment that you have to enforce through garnishment or other means. In some cases, it can be very expensive and time consuming to attempt to collect such an obligation. In some cases, the party is never able to get paid the amount they are owed. It is important to have a qualified attorney who can look at other options rather than merely obtaining an unsecured judgment for a debt.
Merger versus Incorporation of Property Settlement Agreements
Many attorneys do not understand how to make decrees and property settlement agreements fully enforceable. They may think if the Court orders certain provisions that they are enforceable by contempt. They may think a settlement agreement is fully enforceable by contempt but fail to use the language necessary to make the terms enforceable as such. It is important to have experienced and skilled Arizona Divorce Attorneys who are very familiar with the intricacies of the law draft your documents so that your final decree is as enforceable as possible.
Failure to Comply with Parenting Time / Legal Decision Making (Legal Custody)
If a party fails to comply with parenting time and legal decision-making orders, the remedy of contempt is available. Thus, a violating party can be incarcerated or sanctioned for such failures. It is not uncommon for a Court to order the offending party to take parenting classes, seek counseling or other types of measures to “learn to behave” better. Courts also often award make up parenting time. If in the child’s best interests, the non-offending party may be granted legal decision making or more parenting time. In some extreme cases, the violating party may only be granted supervised parenting time until their behavior improves.
Attorney Fees and Costs in Enforcement Actions
A party who does not comply with Court orders is taking the risk that he or she will eventually be ordered to pay the other party’s attorney fees and costs associated with enforcing Court orders. A highly skilled and knowledgeable divorce and family law attorney should lay the groundwork for such award during the proceedings. This means making sure the right remedies are requested. We have seen many cases where an attorney makes the wrong requests and his or her client ends up having to pay his / her own attorney fees and costs as well as some or all of the other party’s fees and costs because their attorney did not fully understand what remedies are available for which violation.
At Bishop Law Office we will discuss all your options and assist you in making sure that your final decree or judgment is enforceable and will be happy to assist you should enforcement proceedings become necessary.